State v. Adams, CASE NO. 08 MA 246
| Citation | 2012 Ohio 2719 |
| Decision Date | 13 June 2012 |
| Docket Number | CASE NO. 08 MA 246 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE, v. BENNIE ADAMS, DEFENDANT-APPELLANT. |
| Court | United States Court of Appeals (Ohio) |
For Plaintiff-Appellee:
Attorney Paul Gains
Prosecuting Attorney
Attorney Ralph Rivera
Assistant Prosecuting Attorney
For Defendant-Appellant:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite
¶{1} Defendant-appellant Bennie Lee Adams has filed an application to reopen his appeal. He raises seven issues that he contends his prior appellate counsel should have raised in the direct appeal of his conviction and death sentence. For the following reasons, this application for reopening is denied and the request for appointment of counsel is therefore also denied.
¶{2} In the fall of 2008, appellant was sentenced to death for the aggravated murder of Gina Tenney which occurred at the end of 1985. As the crime was committed prior to January 1, 1995, the direct appeal proceeded through this court as opposed to proceeding directly to the Ohio Supreme Court. See Ohio Const. Schedule §12; R.C. 2929.05.
¶{3} Appellant's attorneys filed a five hundred twenty-eight page brief in this court, the longest brief encountered by this court and, according to our review of extensions granted by the Ohio Supreme Court in capital cases, possibly by that court as well. On October 14, 2011, we affirmed appellant's conviction and death sentence in a ninety-five page opinion. See State v. Adams, 7th Dist. No. 08MA246, 2011-Ohio-5361. Appellant's appeal to the Ohio Supreme Court is pending.
¶{4} On January 12, 2012, the Ohio Public Defender's Office filed in this court a timely application to reopen appellant's appeal under App.R. 26(B). They asked to be appointed as his counsel for purposes of filing the application to reopen and thereafter if reopening is permitted. Attached to the application for reopening are the affidavits of the attorneys who represented appellant in his direct appeal to this court and who are currently representing him in the Ohio Supreme Court. They claim that they did not notice the issues now raised, that they would have raised them in their appellate brief had they thought of them, and that they believe the issues now raised are meritorious and deserve review by this court.
¶{5} Pursuant to App.R. 26(B), a defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence based on a claim of ineffective assistance of counsel. App.R. 26(B)(1). The defendant must set forth one or more assignments of error or arguments in support of assignments of error that previously were not considered on the merits or that were considered on anincomplete record due to appellate counsel's deficient performance. App.R. 26(B)(2)(c).
¶{6} An application for reopening shall be granted if there is a genuine issue as to whether the defendant was deprived of the effective assistance of counsel on appeal. App.R. 26(B)(5). If the court grants the application, it shall appoint counsel to represent the defendant if he is indigent and not currently represented. App.R. 26(B)(6)(a). If the application is granted, the case shall proceed as on an initial appeal except that the court may limit its review to arguments not previously considered, and the briefs on reopening shall address the claim that prior appellate counsel rendered deficient performance which prejudiced the defendant. App.R. 26(B)(7).
¶{7} Thus, in determining whether a defendant-appellant has received ineffective assistance of appellate counsel, we apply the two-pronged analysis from Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): conduct that fell below an objective standard of reasonableness and a reasonable probability the results would have been different. See State v. Were, 120 Ohio St.3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 10-11. Thus, the applicant must prove that counsel was deficient for failing to raise the issues he now presents and that there was a reasonable probability of success had he presented those claims on appeal. Id. at ¶ 11, citing State v. Sheppard, 91 Ohio St.3d 329, 330, 744 N.E.2d 770 (2001). In seeking reopening, the appellant bears the burden of demonstrating that there is a "genuine issue" as to whether he has a "colorable claim" of ineffective assistance of appellate counsel. Id., citing State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998).
¶{8} Notably, appellate counsel need not raise every possible issue in order to render constitutionally effective assistance. State v. Tenace, 109 Ohio St.3d 451, 2006-Ohio-2987, 849 N.E.2d 1, ¶ 7, citing Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). The United States Supreme Court in Jones explained:
¶{9} "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. Justice Jackson, after observing appellate advocates for many years, stated:
¶{10} " Jackson, Advocacy Before the Supreme Court, 25 Temple L.Q. 115, 119 (1951).
¶{11} "Justice Jackson's observation echoes the advice of countless advocates before him and since. An authoritative work on appellate practice observes:
¶{12} " Jones, 463 U.S. at 751-752.
¶{13} Appellant sets forth seven issues that he believes should have been raised in the original appeal, the first of which relates to testimony derived from an autopsy performed on December 31, 1985 by the Mahoning County Coroner. By the time of the 2008 trial, that coroner was deceased. The state filed a notice of discovery containing a coroner update and disclosing that Dr. Germaniuk, a forensic pathologist, would testify at trial. He had watched the video of the autopsy, reviewed the photographs, and the written material. Appellant contends:
¶{14} "The trial court violated Adam's Sixth Amendment right to confront the witnesses against him when it allowed Dr. Germaniuk to testify concerning an autopsy conducted twenty-three years prior by a different coroner and when it allowed the autopsy report to be admitted into evidence; trial counsel were likewise ineffective to Adams' prejudice when they failed to object to the admission of Dr. Germaniuk's testimony as well as to the admission of the autopsy report."
¶{15} In attempting to demonstrate prejudice from the admission of the pathologist's testimony, appellant complains that the pathologist both adopted and criticized the coroner's report. Appellant notes that the pathologist testified that hewould have characterized the cause of death as asphyxia instead of the phrase used by the coroner, "suffocation due to traumatic asphyxiation." (Tr. 408). The pathologist opined that the coroner should not have labeled certain wounds as superficial unless an incision was made to ensure how superficial they were. (Tr. 421). The coroner had used vitreous potassium to determine that time of death was 11:15 p.m., but the pathologist disclosed that this method is no longer reliable. (Tr. 426-428). He testified that he would have based his determination on the volume of food in the stomach compared to when she last ate and that he would have placed her death between 5:00 and 10:30 p.m. with death occurring "probably somewhere in the middle of that time." (Tr. 435-436). Finally, the pathologist stated that the coroner had no qualifications in forensic pathology but merely won a popularity contest. (Tr. 440).
¶{16} Appellant concludes that trial counsel was ineffective for failing to object to the admission of the autopsy report in the absence of the coroner's testimony as it was generated for the purpose of proving a fact at trial and for failing to object to the testimony of the forensic pathologist as he did not perform the autopsy. For purposes of reopening, appellant urges that appellate counsel should have raised this ineffectiveness of trial counsel and should have cited in support: Melendez-Diaz v. Massachusetts, __ U.S. _, 129 S.Ct. 2527, 2539-2540, 174 L.E.2d 314 (2009) and Bullcoming v. New Mexico, __ U.S. _, 131 S.Ct. 2705, 2709-2710, 180 L.Ed.2d 610 (2011).
¶{17} A testimonial statement is one with a primary purpose of establishing or proving past events potentially relevant to a later criminal prosecution. Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). A business or public record is generally admissible absent confrontation as it was created for the administration of the entity's affairs and not for the purpose of establishing some...
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